Google’s Gmail under threat in California

Calling the service a ?Faustian bargain,? a CA Senator says that the service …

As a follow up to our report on Google's Gmail privacy concerns, it appears as though Google's home state of California may be drafting legislation to make Google's planned business model illegal. Senator Liz Figueroa is leading the charge, arguing in a recent press release that "it is not customers who want such a program, it is advertisers." Calling the service a ?Faustian bargain,? the Senator says that the service undermines the most fundamental aspect of communication, namely the expectation of privacy.

At the head of the debate is Google's AdSense technology, technology that analyzes the words and content of a selection of text in order to determine the statistically-best text ads to serve. Privacy advocates argue that analyzing a user's e-mail is an invasion of privacy, even if it is done by a machine and even if someone agrees that this is allowable in a Terms of Service agreement. As noted in our earlier report, the UK-based Privacy International has already filed complaints in Britain, and US organizations are circling wagons on multiple levels.

As it is shaping up, the story is interesting on at least two levels. On the one hand, there's the question of computational analysis. Google's technology is so intelligent that some skeptics are reticent to compare it to other machine-based technologies. Such technologies as networking equipment, spam filters, and anti-virus filters have always scanned content, but AdSense isn't about matching keywords to a Bayesian database or searching for executable code in an e-mail: it's about trying to actually understand the e-mail in question. For example, Google's technology works to understand context in a very important way, and much of the ruleset used for contextualization must be created and maintained by a live editorial staff that looks at statistical performance. They don't want a selection of text about a recent death in the family to bring in insensitive ads about coffin sales. Google works hard to make sure the text advertisements are appropriate to the context.

One can see how this issue could continue to plague current definitions of invasion. While few would ever agree to a Gmail service that required human beings to read your mail and then send you advertisements, the prospects of a machine doing this work seem to go over rather well with a majority of people. The second, more curious aspect is exactly what Figueroa is calling the ?Faustian bargain,? namely the commonsensical notion that Google's technology should be permitted to perform as designed so long as everyone uses the service agrees to it. Can your privacy be "invaded" if you've given consent to that invasion? Perhaps, but opponents of the service argue that Google's current Terms of Service do a meager job of explaining how the service actually works, leaving customers (perhaps purposely) uninformed about the decision they're making. One thing is for certain, however. The moment this service goes public, Google's servers will be slammed by the droves of people who will sign up, regardless of what the Terms of Service are.

Ken Fisher / Ken is the founder & Editor-in-Chief of Ars Technica. A veteran of the IT industry and a scholar of antiquity, Ken studies the emergence of intellectual property regimes and their effects on culture and innovation.